October 31, 2008

Ted Olson Wins Supreme Court Showdown

After weeks of dispute, and just three days before oral argument, the petitioners in the case of Carcieri v. Kempthorne agreed late this morning that former solicitor general and Gibson, Dunn & Crutcher partner Theodore Olson will be their advocate before the Supreme Court on Monday. Olson's tenacious adversary Joseph Larisa will sit silently at the counsel's table. But to hear Larisa tell the story, the decision was not reached until after a dramatic phone call to the squabbling attorneys this morning from Court Clerk William Suter.

At its private conference this morning, the Court rejected for the second time the motions before it for divided argument time in the case, which involves a dispute over Indian land in the town of Charlestown, Rhode Island. That, in effect, returned the issue back to the lawyers for them to decide which one lawyer would argue. Rhode Island Gov. Donald Carcieri wanted Olson and no one else, while Larisa, a private attorney for the town of Charlestown who handled the case for a decade in courts below, offered to flip a coin.

Suter, according to Larisa, got Olson, Assistant Rhode Island Attorney General Neil Kelly, and Larisa on the phone together at 11 a.m., following the Court conference. He gave them one hour to come back to him with a single name. Failure to do so, he said, would result in "default of oral argument." That, apparently, would have meant that only the respondent, represented by the solicitor general's office, would argue on Monday, with no input from a representative of the state or locality -- an extraordinary scenario.

"At that point, I zoomed over to the governor's office," Larisa says, ready to agree to a three-way drawing between the governor, the attorney general, and himself. But they said no, telling Larisa the only choice was between Olson or default. "I asked, 'You're willing to throw it all away?'" After further discussion, Larisa says, "I concluded they were not bluffing." Consulting with Charlestown officials, Larisa decided to go along with Olson "rather than killing the oral argument." Olson called the Court clerk with the news that he, not Larisa, will be arguing. The argument is set for 1 p.m. Monday.